Summary: Mr Y complains the Council did not properly consider his family’s circumstances when it looked at his appeal for D to receive taxi transport to school. In our view there is procedural fault in how the Council handled D’s school transport application and appeal and it has agreed to implement the actions listed at the end of this statement to remedy the injustice caused by fault.

The complaint

1. Mr Y complains about the Council’s decision regarding his child’s home to school transport. He says the Council has failed to consider the family’s circumstances and his safety concerns.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. During my investigation I discussed the complaint with Mr Y and considered any information he provided.
5. We made enquiries of the Council and considered the response.
6. I consulted any relevant law and guidance which I have referred to in this statement.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
8. Mr Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance relevant to this complaint

Transport eligibility

9. Local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age to attend their ‘qualifying school’. The travel arrangements must be made and provided free of charge. The relevant qualifying school is the nearest school with places available that provides education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have. Eligible children include:
• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children aged eight and above);
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem;
• children living within walking distance of the school but who cannot walk to school because the route is unsafe; and
• children entitled on low-income grounds. (Education Act 1996, 508B(1) and Schedule 35B)
10. The law allows councils to meet their duty for eligible children in a number of ways, as long as the council has the consent of the parent. With the agreement of a parent, the council might:
• provide expenses to enable the parent to make their own travel arrangements for their child;
• pay a cycling allowance to enable a child to cycle to school;
• provide independent travel training to a child where it is appropriate to do so
• provide someone to escort the child, for example when they are walking or wheeling to and from school.

SEN Transport and Accompaniment

11. The statutory guidance ‘Travel to School for Children of Compulsory School Age’ says councils need to assess eligibility on the grounds of special educational needs, disability or mobility problems on a case-by-case basis. Councils should take account of the child’s physical ability to walk to school and any health and safety issues related to their special educational needs, disability or mobility problems. It may take account of whether they would be able to walk to school if they were accompanied.
12. A child will not normally be eligible solely because of their parent’s work commitments or caring responsibilities mean they are unable to accompany their child themselves. Councils must consider cases where the parent says there are good reasons why they are unable to accompany their child or make other suitable arrangements for their journey.
13. We would expect to see evidence of the council’s decision on accompaniment based on the individual circumstances of the case,

School Transport appeals

14. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. The statutory guidance (Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, Part 5) recommends councils adopt the following appeals process.
• Stage 1: review by a senior officer. Within 20 working days of receiving a parent’s written request to appeal the decision, a senior officer reviews the original decision and sends the parent a detailed written notification of the outcome of the review setting out the nature of the decision, how the review was conducted, what was taken into account, the rationale for the decision reached, and how to escalate their case to stage 2; and
• Stage 2: Within 40 working days of receipt of the parent’s request for an independent appeal panel to consider written and verbal representations, a detailed decision is sent setting out: the nature of the decision reached; how the review was conducted; what factors were considered; the rationale for the decision reached; and information about appealing to us.
15. The statutory guidance says the appeal panel should notify the parent in writing of the outcome of their review within five days of the hearing. The letter should clearly explain:
• whether they have upheld the local authority’s original decision;
• why they reached that decision;
• how the review was conducted;
• the factors considered in reaching their decision; and
• any other agencies or departments were consulted as part of the review.

Background summary of key events relevant to this complaint

16. Mr Y has a primary aged child who I will call D. D is Autistic and has an Education Health and Care Plan (EHCP) setting out how the Council will meet D’s special educational needs (SEN).
17. D’s EHCP says: “[D] has difficulties with remaining emotionally regulated and staying safe”. It also says: “[D] requires both parents to be available as [D] is not able to safely access the community with the supervision of only one parent due to [D’s] needs”.
18. Mr Y applied to the Council for D to receive taxi transport to school with the support of a Passenger Assistant (PA). D was under the age of eight and lives less than two miles from school. Mr Y explained that D could not travel to school by bus because D becomes dysregulated in crowded places. Mr Y also explained that D has poor awareness of danger which impacts on D’s ability to stay safe when travelling.
19. The Council considered Mr Y’s application. It decided to offer an enhanced Travel Assistance Budget (TAB). The Council says this allows Mr Y flexibility to choose the mode of transport best suited to his and D’s circumstances. The Council calculated the TAB based on two taxi journeys per day to take D to and from school.
20. Mr Y appealed against the Council’s decision. He said it is not possible for him to arrange a consistent taxi service for D. Furthermore, he said D needs constant adult supervision in the form of a PA. Mr Y said he could not always accompany D due to work commitments and his wife was, at the time, heavily pregnant and had caring commitments for their other child who also has additional needs.
21. The Council emailed Mr Y on 7 February 2024 asking him to confirm by 9 February whether he wished to attend the appeal scheduled for 14 February.
22. The Council wrote to Mr Y on 15 February to confirm the outcome of the appeal. The letter said, “The stage 2 panel team have carefully reviewed [D’s] case and have concluded to uphold the decision of an Enhanced Travel Budget (TAB). As mentioned in [D’s] Stage 1 outcome letter, the enhanced TAB will be sufficient for 2 taxi journeys per day, for you to take [D] to and from school safely. The offer was previously offered to you as a discretion due to [D’s] needs but does not meet the criteria on distance grounds. We feel this is the best option to help assist [D] to and from school safely”.

Was there fault in the Council’s actions causing injustice to Mr Y and D?

23. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the process the Council followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether the person disagrees with the decision made.
24. I have considered the information the Council took account of when deciding not to award taxi transport and a PA for D. In my view, and based on the information available to us, I find fault with how the Council assessed the transport application made for D for the following reasons.
• The Council agreed that D was eligible for transport assistance. Although D lives less than the statutory walking distance to school, the Council used its discretion to award a TAB due to D’s SEN and the difficulties they face when travelling to school. The Council did not seek Mr Y’s consent before providing a TAB and this is fault.
• The Council’s decision to award the TAB appears to be based on the unavailability of taxi transport in D’s area. This is fault because the Council’s decision must be based on D’s needs and not on the availability of services.
• The appeal outcome letter does not show how the Council made its decision and what factors it considered. This is not in accordance with the statutory guidance and is fault. We asked the Council for evidence of its decision making and it did not provide any notes or minutes of the panel hearing. We therefore have uncertainty about whether the Council properly considered D’s case.
• The Council said it is not obliged to provide transport solely because a parent’s work commitments prevent them from accompanying a child to school. While the Ombudsman agrees that a parent’s work pattern is not in itself a consideration for eligibility, councils must consider each case on its own merits. D’s EHCP says they need the support of two adults in the community. Mr Y explained his wife cannot help due to the care commitments she has for their other child, who also has SEN. The Council has not provided evidence to show how it considered this important point.

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Agreed action

25. Within four weeks of our final decision, the Council has agreed to provide evidence to show it has:
• apologised to Mr Y for the fault found in this statement. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
• paid £100 to Mr Y in recognition of the unnecessary and avoidable time and trouble he has experienced as a result of the fault we have found;
• properly reconsidered D’s application for transport assistance. The Council should give careful consideration to D’s SEN and their need to receive supervision from two adults when in the community;
• if the Council maintains its decision, it will offer a fresh appeal with a new panel and clerk (in person where appropriate). The panel should be given clear information about D’s SEN and whether they can safely travel without the support of a PA; and
• if the Council maintains its decision, it should obtain Mr Y’s written consent before continuing to offer a TAB.
26. Within eight weeks of our final decision, the Council will also:
• remind staff about the importance of properly considering an applicant’s specific circumstances when making transport decisions. In line with the Ombudsman’s ‘Principles of Good Administrative Practice’ the Council should remind staff of the importance of ensuring decisions are properly recorded;
• remind staff of the need to set out the panel’s decision making in outcome letters, as per the requirements set out in the statutory guidance; and
• remind staff of the requirement to seek the applicant’s consent before providing travel expenses such as a TAB.
27. For paragraph 26, the Council will provide us with evidence such as staff training or a briefing paper.

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Final decision

28. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. In my view, the actions listed in the section above will provide an appropriate remedy for the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman